Meanwhile, Back at the Ranch...

Or, The Militia is Alive and Well and Living in the Hill
Country

By Ilse Bailey

Last Modified, August 9, 1996. This article was originally
published in Texas Prosecutor, Volume 25,
No.3, May/June 1995.

Quotes from Motions Filed in Kerr County

"Again, I am not a Subject Resident or a Citizen
of the State of Texas (a Corporation) nor of the United
States (Communistic Democracy)..."

"The Petitioners herein are...members of the
militia of the United States of America, Waco
Command."

"All awards are to be paid in common law
substance gold and silver only..."

"The U.S. Courts are in violation of an order
issued by the Common Law Court of the United States of
America."

"Plaintiff also was denied a jurisdictional
hearing, an obvious act of kidnapping..."

"They [the court officials] deceitfully
pretended to this sovereign citizen that theirs was a
court of Law presided over by a Judge..."

Author's Note [from original article]

I have been trying to write this article for more than two
years, but two things have been holding me up. The first is the
rather prosaic problem common to all gainfully employed people --
I have a job that gets in the way of spending time on writing.
The other obstacle was more influential in keeping me from
submitting an article. My impression was that the problems I had
been grappling with were unique to Kerr County, or perhaps to a
very few rural Hill Country counties, and that any other reader
would, at best, find these issues laughable, and at worst, might
feel compelled to have me transported to the nearest in-patient
psychiatric hospital for evaluation and treatment.

With the horrifying event which recently took place in
Oklahoma City, the latter concern has evaporated, and the former
has been overcome. The explosion, reportedly the work of militant
right-wing anti-government extremists, and its shocking aftermath
of death and destruction, has made the rest of the country aware
of a strong undercurrent of anger and unrest that has been
growing in this country for some years.

Here in the Hill Country, we have been
watching with growing concern for the past few years as we have
seen this movement grow and divide, and then grow even faster,
like a cancer. It has infiltrated all aspects of society, from
the most fringe elements to the judiciary, and all groups in
between. They call themselves different names, but they all have
the same general motivation: eventual destruction of the federal
and state government as they currently exist.

Some individuals who have been tied to the "Michigan
Militia" made their attempt at destruction of part of our
government by use of explosive force against the federal building
in Oklahoma City. Other like-minded groups are attempting in Kerr
County (and apparently other locales) to achieve the same end by
using frivolous lawsuits, appeals, removal actions and other
court proceedings to overburden and eventually paralyze our
entire justice system.

In Kerr County, our court system has been plagued for years by
individuals and groups which I refer to collectively as
"Posse." You may know them better through the news
media as "militias," but by any name they exhibit
characteristics that should cause prosecutors around the state to
take notice and be prepared to respond. They are organized,
motivated, and they have figured out how to use the system
against itself. They have discovered that one way to neutralize
the government is to overload it with frivolous claims and
ridiculous lawsuits.

My first contact with the ideas presented by this type of
group was in justice court and county court at law cases against
individuals who identified themselves as members of the
"Posse Comitatus," a nationwide group of citizens
united in their belief that the federal and state governments
have unconstitutionally exceeded their proper spheres of
influence or power, and need to be stopped, by force, if
necessary. In 1980 a group of such citizens filed a document in
the Gillespie County deed records purporting to be the
"Charter of the Posse Comitatus of the State of Texas,
County of Gillespie." The charter makes all members
"sovereigns," declares all current laws null and void,
and sets out the group's mission as protection of the United
States and Texas Constitutions and the "Constitution of the
Free and Independent State of Texas" (!) as interpreted by
the members.

In more recent years and months I have come into contact with
several other groups who take exception to being identified as
"Posse," but their rhetoric is almost identical to the
rhetoric used by the "Posse" members. My conclusion is
that if it looks like a duck, sounds like a duck, and swims like
a duck, it can't very well object to being called a duck.

The claims put forward by these individuals are usually
meritless to the point of being ludicrous, but they have to be
dealt with, which can a take huge chunk out of a prosecutor's
workday and reserves of patience. For example, during one point
in 1994 I kept track of how I was spending my workdays for a
couple of months, and discovered that 40% of my workday, on the
average, was being taken up by dealing with "Posse"
cases. In a county as small as Kerr County (one elected county
attorney and two assistants), this can make significant inroads
into the county's ability to actually prosecute real crime.

The "Posse" have borrowed from the pro se prisoner
"writ writer" methodology, and have improved on it.
Logic, res judicata and threats of contempt are no impediment to
them. They do not seek justice, they seek a public forum for
their political views and an opportunity to clog the court system
with their rhetoric. They request jury trials for every issue,
appointed counsel, and will appeal (pro se) every adverse ruling,
all the way to the Supreme Court or the International Court in
the Hague3. The best way we have found to deal with them is to be
prepared and prepare our judges, so that they are not so inclined
to give these litigants much leeway. This, in turn, can sometimes
reduce the number of times you have to litigate the same issue
with the same individual over the same set of facts.

If you do not have any of these "Posse" people in
your jurisdiction, perhaps the following will at least be
amusing. If you do, perhaps it may be of some use to you in
clearing your court docket so that you can spend your time
prosecuting crimes and otherwise doing what the taxpayers intend
that you do with their tax dollars. (It should be noted that
Terry and James Nichols, who have been tied to the Oklahoma City
bombing, have also used the courtroom tactics outlined in this
article. In an article in the April 28, 1995 Austin American
Statesman, it was reported that the brothers have tried
"unusual" legal tactics to avoid debts, beat speeding
tickets and negate child support payments. They have used the
identical arguments that we have been seeing in Kerr County
pleadings regarding jurisdiction over the person, and lack of
citizenship. In addition, they have contended in court
proceedings that they can not be required to obtain driver's
licenses and that they have the right to issue their own
currency.)

Foreign Sovereignty

One of the favorite strategies of these people is to claim
that the court in which you are trying to prosecute them does not
have jurisdiction over them because they are not citizens of
Texas or of the United States. They will proceed to offer
affidavits and other documents purporting to prove to you that
they have renounced their citizenship, are each "foreign
sovereigns," and thus must be tried pursuant to all of the
diversity jurisdiction rules applicable to suits by the United
States against a foreign country.

Note that they do not claim citizenship of any particular
other country, since that would make them subject to the laws of
such other country -- they each individually claim to be a
sovereign country with no fixed geographical situs. This
"country" is made up of one corporeal and mobile human
body, with a citizenry of one. Hence, we have various other
sovereign countries roaming around within Kerr County, driving
cars without licenses (countries apparently do not need licenses
or insurance to drive cars), refusing to pay taxes, and
committing various other conduct that, when committed by your
average citizen, are considered to be criminal misdemeanors.

An important thing to remember in attacking these claims of
sovereignty is that it is extremely difficult to effectively
renounce your American citizenship. During a period of particular
frustration with these litigants, I decided that they should be
deported if they were truly not American citizens, so I attempted
to get the Immigration and Naturalization Service involved. The
INS was, of course, intrigued by the perplexing problem of where
you deport a "country" to, but they did provide me with
useful authority for the proposition that one does not easily
divest oneself of United States citizenship.

Title 8 U.S.C. 1481 contains the basic statutory
provisions regarding loss of nationality. In short, the law
provides that mere renunciation of citizenship is not effective,
unless done in conformance with the statutory scheme. The statute
generally requires some action like taking an oath of allegiance
to another foreign nation (as would be required in joining the
military of a foreign nation, for instance), or making a formal
renunciation before a diplomatic or consular officer of the
United States in a foreign country, in such form as may be
prescribed by the Secretary of State. The burden of proof is on
the person claiming that citizenship has been revoked or
abandoned, by a preponderance.

Regardless of the court in which you find yourself with a
"Posse" litigant, immediately acquaint your judge with
the necessary authority to refute their claims. If they lose, it
is a foregone conclusion that they will appeal the case, and it
is best to create a good record from the outset, rather than
having to try to create the record as you go along in the
appellate system.

Indigent Defendants

We have dealt with dozens of criminal and civil cases against
"Posse" litigants, and I can not remember a single case
where the litigant has not claimed to be indigent, and thus
entitled to a court appointed attorney, a free transcript and
statement of facts on appeal, free service of process and free
service of subpoenas. If you do not provide these things freely
and rapidly, you are then in danger of having a lawsuit filed
against you for violation of civil rights and conspiracy to
violate same.

Until I realized that it was imperative to aggressively attack
all "Posse" indigency affidavits as quickly as
possible, I was really in a bind. Every time that the State filed
criminal charges against a "Posse" defendant, the
defendant would immediately file an affidavit of indigency, a
request for jury trial and for appointed counsel, a removal
action to remove the case either to federal court (remember that
pesky diversity jurisdiction!), or to the "Common Law Court
for the Republic of Texas." (An "Alice in
Wonderland" court of their own imagining, which I have been
told is located in the A-Z Appliance Store between Kerrville and
Ingram. The proprietor of the repair shop, Gary Fiscus, is
apparently the clerk as well as the judge of the court. )

If all of these requests were not granted promptly, the
defendant would then file a civil lawsuit in district court (and
sometimes simultaneously in federal court) against all and sundry
for violation of his or her rights. The usual defendants included
every law enforcement officer whose name appeared anywhere on the
offense report or booking sheets, the judge, the sheriff, and the
prosecutor. This new suit would be filed along with another
indigency affidavit, and away we would go.

It does not take a substantial mastery of mathematics to
ascertain that in very short order just about every person in the
county involved in law enforcement could become a defendant, and
that hundreds, if not thousands, of dollars in court costs and
filing fees are being incurred that will never be paid. Once your
judge becomes a defendant in a civil suit by the criminal
defendant, he generally will not want to preside in the
underlying criminal case. This will then require going through
the process to get another judge to hear the case. Given the
foregoing, persuading another judge to take the case on can
sometimes be difficult.

Meanwhile, back at the ranch, remember that there is still a
pending Class B or even Class C misdemeanor underlying the whole
mess. Of course, as a prosecutor, you do have the discretion to
simply dismiss the criminal charges, on the theory that this
conviction is not worth the trouble. If you dismiss the charges,
all the ancillary cases will probably fade away, but we have
resisted this course of action in Kerr County, since it would
amount to a concession that these people are above the law.

As a prosecutor for most of the past nine years, I take
seriously my oath to uphold and defend the constitution and laws
of this state and of the United States. I interpret this oath to
require that I take all necessary steps to make sure that all
defendants are justly dealt with according to our laws, not just
the ones who make it easy for us. To do otherwise would be to
condone the anarchy that these groups are promoting.

We have discovered that much of the lawsuit proliferation
described above can be avoided by requesting indigency hearings,
early and often. In some cases, it may even be worth your while
to have an investigator look into the financial arrangements of
your defendant(s).

They are generally unemployed, and will not volunteer any
information you can use to establish lack of indigent status, but
you can often learn useful information with a little
investigation. For instance, a "Posse" family, formerly
residents of Kerr County, who regularly filed lawsuits against
everyone in sight, and were frequently defendants in minor
criminal actions, always claimed to be indigent. After some
investigation, we discovered that the "indigent"
patriarch of the family regularly appeared at the courthouse
steps to bid on foreclosed property with bags the size of
basketball literally full of silver coins. Needless to say, with
this information in hand, it was not difficult for the prosecutor
to convince the court that this defendant should be required to
pay court costs and fees as a non-indigent person.

Another tactic which this family used, and I have seen it used
elsewhere, is that they purport to have transferred all their
assets to a "Trust." Since the assets belong to the
trust, and not the litigant, the litigant will claim indigent
status. Remember that the burden of proof for indigency is on the
one seeking the status (e.g., Sifford v. State, 511 S.W.2d 526
(Tex. Crim. App. 1974)), so it will be their burden to establish
the trust by sufficient evidence, and to prove that they do not
have access to funds or other assets of the trust when they need
such funds.

Removal Actions

Attempting to remove cases to federal court or to their
mythical "Common Law Court for the Republic of Texas,"
regardless of the appropriateness of such action is a popular
move by these litigants. This tactic has its down side (remember
that when an action is removed, even wrongly, to federal court,
all proceedings in state court are stayed until the resolution of
the removal action, e.g., Lowe v. Jacobs, 243 F.2d 432 (5th Cir.
1957), cert. den. 355 U.S. 842, 2 L.Ed.2d 52, 78 S.Ct. 65; Allman
v. Hanley, 302 F.2d 559 (5th Cir. 1962)), but removal can also
have its benefits. The federal courts seem to have a lot more
experience with the types of claims made by these litigants, and
as a general rule are not as hesitant to impose sanction against
them for making frivolous claims and arguments and generally
wasting the federal judge or magistrate's time.

We had a lot of trouble with cases being removed
to the "Common Law Court for the Republic of
Texas," until the Austin Court of Appeals held in
Kimmell v. Burnet County Appraisal District, 835 S.W.2d
108 (Tex. App.--Austin 1992 ---) that it did not exist:
"We hold that the Common Law Court for the Republic
of Texas, if it ever existed, has ceased to exist since
February 16, 1846." Id., at 109. The Austin Court
went on to observe in a footnote that the Republic of
Texas adopted the English common law effective March 16,
1840, and the state government was organized on February
16, 1846, and the Common Law Court for the Republic of
Texas could therefore have only existed between these two
dates. The court expressed confusion, however, at the
presence of a ZIP code on this common-law court's file
mark, because ZIP codes only began in the early 1960's as
a result of the Postal Policy Act on 1958.

Our
litigants are not deterred by this ruling. They now
purport to remove their cases to the "Common Law
Court for the United States," located at the same
address as the former "Common Law Court for the
Republic of Texas."

Many of these removal cases are worth reading in their
entirety, but in the interests of being succinct, I will just
refer you to the ones I consider most noteworthy: United States
v. Masat, 948 F.2d 923, 934 (5th Cir. 1991) (argument that
district court lacked personal jurisdiction because of
defendant's status as "non-citizen,"
"non-resident" and "freeman" was frivolous);
United States v. Schmitt, 748 F.2d 880, 882 (8th Cir. 1986)
(argument that district court lacked personal jurisdiction over
defendants because they were "Natural Freemen" and not
a "juristic identity" was entirely frivolous); Kimmell
v. Burnet County Appraisal District, 835 S.W.2d at 109-15;
Kimmell v. Leoffler, 791 S.W.2d 648, 650 n.1 (Tex. App.--San
Antonio 1990 writ denied); Scotka v. State, 856 S.W.2d 790, 792
(Tex. App.--San Antonio 1993, no pet.) (Appellant held not able
to unilaterally immunize herself from the laws of this state, and
not able to pick and choose at will the forum for a criminal
prosecution or appeal).

Coinage Act

Another favorite argument used by every "Posse"
litigant I have dealt with is that the American system of
currency is illegal and unconstitutional. Thus, they argue, they
can not be required to pay any debt or fine or tax imposed by the
government, since it is all in illegal money. The argument has to
do with their contention that federal reserve notes (what most of
us think of as "money") are not legal tender, because
they violate the United States Constitutional provision that a
state may only tender gold and silver in payment of debts (U.S.
Const. art. I, Section 10, cl. 1).

If you have a defendant making such a claim about the
invalidity of money, having these cases in your trial notebook
will allow you to shortcircuit much of your defendant's argument,
and get down to the real issue(s) in the case.

Real Estate Litigation

This argument (that our money is not legal tender) is
interesting, because it arises in many different contexts. We
have seen it in criminal cases, as you might expect, but have
also seen it in a number of real estate cases filed in our
district courts by banks seeking to have clouds removed from the
title of property they purchased at foreclosure sales. It seems
that a "Posse" individual will attend foreclosure
sales, bid twenty-one silver dollars on each piece of land that
strikes his fancy, regardless of the listed value of the
property. A financial institution will then bid the amount due on
the note, usually in the $30,000.00 to $300,000.00 range, and
will consider itself the successful bidder.

Subsequently, the "Posse" bidder will file some sort
of cloud on the title, claiming to be the only successful bidder
in "lawful money", and the financial institution winds
up with a piece of real estate that it can not provide clear
title to without a lawsuit. It does not require a great leap of
imagination to envision that financial institutions might become
reluctant to purchase these properties or to lend money using
such properties as collateral, given the evident difficulties in
establishing a marketable title. In an area with an economy which
depends heavily on retirees and tourism, like the Hill Country,
reluctance by financial institutions to provide real estate
financing could be devastating to local economies.

This same tactic has been tried in other jurisdictions and has
been rejected by the appellate courts (e.g., Elmore v. McCammon,
640 F.Supp. 905 (S.D. Tex. 1986) (under Texas law, bid at deed of
trust foreclosure sale in silver coin did not override credit to
mortgagee entered by substitute trustee in favor of mortgagee who
was successful bidder despite deed of trust provision requiring
"cash" sale).

Fringed Flag

Most courtrooms in Texas are decorated in much the same way:
there is a bench for the judge, counsel table(s) for the parties
and their attorneys, chairs for the observers, and flags, of both
the Texas and the United States. The flags sometimes are adorned
with golden fringe around the edges. Beware, those of you who
must practice in a courtroom with a fringed flag! You will
undoubtedly be assailed with the argument that the fringe on the
flag denotes a court of admiralty. Your defendant will then point
out with great glee that since the offense alleged did not occur
on the high seas, ipso facto, the "admiralty court" in
which you find yourself has not properly obtained jurisdiction
over him!

I am sure that this argument can be refuted by reference to
some line of cases or some statutory reference; however, I
usually succeed in convincing my judges that decor is not a
determinant for jurisdiction, so I have not taken the time to
create a better analysis.

Sovereignty Orders

Sometimes doing the right thing does not necessarily make one
particularly popular. Even with the Kerr County Attorney's
vigilant fight against the ochlocracy advocated by
"Posse" litigants, the county became a national
laughing stock last summer when our very own lame duck county
judge granted several petitions to "Posse" types,
declaring them to be individual "sovereigns" and
exempting them from all laws and license requirements. The Kerr
County Attorney's Office initially received a substantial amount
of negative response to our challenge to the judge's orders, but
were eventually vindicated when the State Commission on Judicial
Conduct issued a public reprimand holding that in issuing the
orders the judge had displayed a "lack of competence in the
most fundamental principles of law." This judge eventually
resigned in disgrace.

I sincerely hope that there are no other members of our
statewide judiciary who would follow in this judge's footsteps.
However, if you should have a similar problem, remember the
statewide network of state agencies that are there to assist you.
We received a great deal of assistance (and moral support) from
Assistant Attorney General Michelle Wakefield, who deals with
these folks on a statewide basis, as well as aid and assistance
from numerous others individuals and agencies around the state.

Networking

The "Posse" have come into the information age.
Almost everyone is aware by now, as a result of the recent media
coverage, that these folks use computer bulletin boards to spread
their messages of paranoia and hatred. This has significant
implications for those of us trying to fight them. I find that
they use the computer networks and old fashioned mailing lists to
distribute blueprints to their members and sympathizers on how to
file their lawsuits, and how to avoid getting them summarily
disposed of.

Remember when you are fighting with one of these litigants in
court that it is likely that he has the support and aid of
hundreds of like-minded extremists backing him up, and that you
may not be able to fight him alone. If you have the ability to do
so, it would be wise to do a little of your own "surfing on
the Internet," to try to see what you might be coming up
against. Forewarned, as they say, is forearmed. I was somehow
lucky enough to get on one of their mailing lists for a time, and
the information I received was very informative and potentially
useful.

Sanctions

If you find yourself in federal court, do not hesitate to
avail yourself of the federal courts' willingness to impose
sanction in appropriate cases. As I have indicated, various
federal courts have seen enough of these cases and litigants that
their patience is limited (see judge's order at end of article).
I have successfully prevented one troublesome litigant from being
able to file any more cases at all in the United States Court for
the Western District of Louisiana (Lafayette Division) by seeking
and obtaining a sanction order which included a requirement that
the litigants pay me and several other individuals/agencies a
substantial amount in attorneys fees prior to attempting to file
any other document in that court.

Anytime you can set up circumstances whereby these litigants
are required to pay the appropriate court costs and fees, you
will most likely succeed in silencing these nuisance suits. They
do not seem willing to pay to harass the government.

If I can leave you with any one particular thought I would ask
you to remember about these "domestic home-grown
bigots," as they have been described by National Public
Radio, it is this: Do not underestimate them! They are numerous,
they are motivated, they know how to play the system, and they
sincerely believe that the government (that's you and me, folks!)
need to be overthrown--through violence, if necessary. Tread
carefully, and use all resources at your disposal. Good Luck!

This marvelous opinion by Judge Sparks
(Mazurek v. Itz, Cause No. A 94-CA-057-SS, in the United
States District Court for the Western District of Texas,
Austin Division) is not a published opinion, but I
believe it accurately reflects the federal judiciary's
frustration with the arguments and tactics used by
"Posse" litigants:

ORDER

BE IT REMEMBERED on this the 25th day of February
1994 the Court was presented with the file in the
above-styled cause. Begrudgingly, the Court reviewed the
file, noting that the Itzes have requested expressly that
the Honorable James Nowlin preside over their case.
However, the Court is confident that Judge Nowlin has
bribed the District Clerk, and that is the reason for the
assignment to the undersigned. The Court is,
unfortunately, extremely familiar with Leo Itz and Elise
Itz, their many lawsuits, and their inane and irrational
allegations. Notwithstanding previous orders of both
federal district judges in Austin with regard to the
Itzes' continuous litigation and express warnings that
sanctions would be ordered for further irresponsible
litigation, Leo Itz and Elise Itz attempt to remove Cause
No. 1720-1 in the Justice of the Peace Court, Precinct
No. 1 of Gillespie County, Texas. This is a case of
forcible entry and detainer filed by Clara M. Mazurek,
also known as Clara Mazurek. Ms. Mazurek had the
misfortune of purchasing the Itzes' property at an
Internal Revenue Service Tax sale in June of 1993 and,
apparently, is still (in January of 1994) attempting to
have the Itzes removed from the property. The forcible
entry and detainer complaint was filed on January 24,
1994; a jury was summoned, at the request of the Itzes,
on February 2, 1994; after trial, the jury rendered a
verdict in favor of Ms. Mazurek; and a judgment issued
out of the Justice of the Peace Court on February 2,
1994, delivering possession of the property to Ms. Clara
M. Mazurek. Meanwhile, back at the ranch (a phrase I
always wanted to use in an opinion), in simultaneous
filings and subsequent filings, the Itzes, through
frivolous and irrational pleadings, attempt to place the
forcible entry and detainer case first in the United
States District Court for the Western District of Texas;
second, in the United States Court of Appeals for the
Fifth Circuit; and finally in the United States Court for
the District of Columbia [The Itzes generally try to
place their litigation in some court called the
"Common Law Court of USA," which, allegedly is
in Lafayette, Louisiana.] The Itzes further allege in
their "Notice of Amendment of Defective Jurisdiction
and Venue" filed in this cause that Clara Mazurek
is, in fact, a political subdivision of the State of
Texas and, by changing the style of the original lawsuit,
attempt to add the State of Texas as a party plaintiff in
the forcible entry and detainer lawsuit. The Itzes allege
that they (presumably collectively) are a foreign state.
They allege jurisdiction under 28 U.S.C. 1331 and
removal authority under 28 U.S.C. 1443(1). The Itzes
sign their pleadings "under threat, duress and
coercion," and the remainder of the pleadings can be
accurately described as "gobbledygook." Alas,
it falls upon this Court to make another order in the
continuing saga of the federal litigation initiated by
the Itzes, and the Court is very tired of their attempts
at manipulating the system of justice in the State of
Texas and this Court. It is clear from the pleadings that
this Court has no jurisdiction in this case and that the
attempted removal is not made in good faith in addition
to its absolute frivolity.

THEREFORE, IT IS ORDERED
that this cause is REMANDED to the Justice of the Peace
Court of Gillespie County, Texas, Precinct No. 1 and
costs taxed to Leo Itz and Elise Itz for the filing fee,
all service fes and $1,500 in costs and expenses, which
includes attorney's fees.

SIGNED this the 25th day of February 1994.
Bam Sparks
United States District Judge